Scalia Dodges

March 23, 2011 — O.

In an interview I was reading on the site, California Lawyer, Justice Antonin Scalia responded thusly to a question:

Q. How would you characterize the role of the Supreme Court in American society, now that you’ve been a part of it for 24 years?
“I think it’s a highly respected institution. It was when I came, and I don’t think I’ve destroyed it. I’ve been impressed that even when we come out with opinions that are highly unpopular or even highly—what should I say—emotion raising, the people accept them, as they should. The one that comes most to mind is the election case of Bush v. Gore. Nobody on the Court liked to wade into that controversy. But there was certainly no way that we could turn down the petition for certiorari. What are you going to say? The case isn’t important enough? And I think that the public ultimately realized that we had to take the case. … I was very, very proud of the way the Court’s reputation survived that, even though there are a lot of people who are probably still mad about it.”

Please notice that the question was about the Supreme Court’s role but that Scalia answered a question not asked. Perhaps it is a question rattling around in his brain: what’s the reputation of the current Court? Of course, having chosen the question, he also chose the predictable answer, which I paraphrase as “just great–thanks for asking!”

Please notice another slippage: As evidence for the strong reputation of the Court, Scalia offers the fact that people have accepted the decisions. Uh, since the Supremes are the last stop, what choice do the people have? They had to accept Dred Scott and Plessy v. Ferguson, too. The people can’t recall a Justice, so what would not accepting a decision look like, anyway?

But there’s more great evidence to come. He cites the Supremes’ having taken the case of Bush v. Gore as support for the good reputation. Uh, it wasn’t the taking of the case that disturbed a lot people; it was the stopping of the counting of votes. It was also the apparent fact–most political scientists who research elections and work with voterly numbers agree–that Gore won Florida, fair and square.

So, yes, we accept your decision to turn corporations into persons even though corporations don’t have lungs or ears, and we accept your decision to make Bush II president–a decision that will probably join the nasty pantheon that includes Dred Scott and Plessy v. Ferguson. And yes, we duly note that, in fact, the Court did accept the case of Bush v. Gore.

But regarding the role of the Supreme Court in today’s society, I wish you had answered the question. Or do I? And regarding the reputation of the current Supreme Court? Oy.